1405941 (Migration)

[2015] AATA 3239

1405941 (Migration) [2015] AATA 3239 (10 August 2015)

DECISION RECORD

APPLICANT:  Ms Capitolina Bairrao Ferreira

MRT CASE NUMBER:  1405941

DIBP REFERENCE(S):  CLF2013/164045

TRIBUNAL MEMBER:  Rieteke Chenoweth

DATE:10 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

·cl.838.211 of Schedule 2 to the Regulations.

Statement made on 10 August 2015 at 8:18am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 March 2014 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 July 2013. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212.

3. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied that the applicant is wholly or substantially reliant on her granddaughter for financial support to meet her basic needs for food shelter and clothing.

4. The applicant appeared before the Tribunal on 18 February 2015 and 29 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Dias, the sponsor and granddaughter of the applicant and Ms Esteves, the applicant’s daughter.  The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the aged dependent relative of  Ms Berta Maria Dias who the applicant claims is their relative. Relative is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

8. In this case Ms Berta Maria Dias is an Australian citizen and is the applicant’s granddaughter.

   Is the applicant an aged dependent relative of an Australian relative?

9. To be granted a Subclass 838 visa the applicant must be an ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continue to be one at the time of decision: cl.838.212, cl.838.221 and cl.838.111. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

10. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of r.1.03; they do not have a spouse or de facto partner; they have been dependent on the Australian relative for a reasonable period and remain so dependent; and are old enough to be granted an aged pension under the  Social Security Act 1991.

11. There is a copy of the sponsor’s birth certificate on the Department file.  The certificate shows the applicant is her maternal grandmother. 

12. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl.838.212.

    Does the applicant have a spouse or de facto partner?

13. There is a copy of the death certificate for Simao Antonio Rabacos, the husband of the applicant. At the hearing Mrs Ferreira confirmed that she does not have a spouse or de facto partner. The Tribunal is satisfied the applicant does not have a spouse or de facto partner.   For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.

    Is the applicant dependent on the Australian relative?

14. The definition of ‘dependent’ as it applies to this application is set out in r.1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on their relative, if at the relevant time the applicant was wholly or substantially reliant on their relative for financial support to meet their basic needs for food clothing and shelter; and their reliance on their relative was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their relative is due to the total or partial loss of their bodily or mental functions: r.1.05A(1).

15. For the purposes of this application, reference to a ‘substantial period’ in r.1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in r.1.05A does not carry any implication of the notion of necessity or lack of choice r.1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

16. In the decision record the delegate noted that the sponsor was asked to provide evidence of the applicant’s financial dependency on the sponsor. This evidence was not supplied by the decision date.

17. Ms Dias, the sponsor, told the Tribunal her grandmother had visited Australia on 4 occasions, on visitor visas. She usually visited the family in Australia to attend family functions such as wedding or christenings. On the last occasion she came to Australia, she came to attend one of her granddaughter’s wedding.  She said that before coming to Australia the last time in 2012 her grandmother had had a hip replacement and Ms Dias had arranged, and paid for, intensive rehabilitation and care. Her grandmother was only given a medical clearance to travel to Australia a few days before departure.  After her grandmother came to Australia the family decided to apply for this visa because she could be better cared for by the family in Australia. The applicant had been living alone in Portugal in a unit for which Ms Esteves used to rent from the government. Ms Esteves told the Tribunal that after the unit had been rented for 25 years she became the owner of the property. The applicant’s son and daughter-in-law who lived in Portugal have both died and her only family members are in Australia.

18. The Tribunal asked Ms Dias who the applicant lives with in Australia. She said the living arrangements were shared between herself and Ms Esteves, the applicant’s daughter but she mainly lives with Ms Dias. Ms Dias has put Portuguese television on in her home so the applicant can watch that at her house. The applicant also visits her son but does not sleep at his house.  Ms Dias runs her own business so she is able to be flexible in providing care for the applicant. She said the whole family provide care and financial support for the applicant.

19. Ms Dias said the applicant receives an income of a government pension of about 400EU per month. This is paid into the applicant’s account and is not used to support her.  Ms Esteves told the Tribunal there was about 5000 to 6000 EU in the account at present.  She said that about 10,000 to 15,000EU had been used to make renovations to the flat in Portugal. The Tribunal asked why the applicant was spending money on renovations to a rented flat in Portugal when she did not own the flat and planned to live in Australia. Ms Dias said that this was the applicant’s decision so that is what the money was spent on. The Tribunal asked Ms Dias to provide documentary evidence from the applicant’s bank account from 2012 to the present showing deposits and withdrawals.

20. At the hearing Ms Dias submitted copies of pharmacy accounts showing expenditure on medication of $10, $54, and $81. She further submitted 2 medical consultation receipts each for $60 which were paid in cash. 

21. After the hearing the Tribunal wrote to the applicant asking her to provide evidence concerning her dependence on the sponsor.  The letter asked her to provide details of her financial dependence on the sponsor.

22. On 20 March 2015, the Ms Dias, on behalf of Mrs Ferreira submitted a number of documents:

    ·    Statutory declaration dated 12 March 2015 by Vera Lucia Bairrao Savvas the granddaughter of the applicant which dated she spends an estimate of $25 per week on activities such as sightseeing, shopping, grooming, lunch or coffee.

    ·    Statutory declaration by Pedro Mrs Ferreira dated 1 March 2015, the grandson of the applicant stating he spends an estimate of $15 a fortnight or his grandmother.

    ·    Statutory declaration by Alice Bairrao Rabaco Esteves, daughter of the applicant stating that she spends an estimate of $25 per week on her mother. 

    ·    Commonwealth bank account in the names of Mrs B and Mr H Dias for the period 5 October 2014 to 30 December 2014.  This has a number of items highlighted to indicate that these amount spent on the applicant.

    ·    NAB account in the names of Mrs B and Mr H Dias for the period 17 May 2014 to 17 June 2014 showing highlighted amounts claimed to be for expenditure on the applicant.

    ·    Statement by Bupa for the period 27 February 2012 to 9 February 2015 showing the medical health insurance was paid for the applicant.  There is a further letter from Bupa to the applicant at her granddaughter’s address.

    ·    Statement by Divinity Funerals concerning a funeral package.

    ·    Burwood Council rates notice in the names of Mrs B and Mr H Dias.  AGL gas accounts in the name of Mrs B. Dias.  Electricity and water accounts in the name of Mr H Dias.

    ·    A letter to the Tribunal dated 19 March 2015 stating most of the things that the airfare for the applicant to travel to Australia in 2014 was paid by the sponsor.

    ·    Bank book of the applicant for the period 3 March 2008 to 24 May 2010 showing payments of the applicant’s pension paid into her account in Portugal. 

23. The Tribunal notes that Bupa statement does not indicate who actually paid the medical insurance costs.  Ms Dias told the Tribunal she had paid the medical insurance.  However these payments did not show up in the bank statements submitted to the Tribunal she said because she had paid for them separately from her business income.  She explained this by saying that she had not wanted to tell her husband of these payments.  At the hearing the applicant and Ms Esteves and Ms Dias gave consistent evidence that the accounts were paid by Ms Dias.

24. At the hearing before the Tribunal the applicant, her daughter and granddaughter all gave consistent evidence that the applicant lives with the sponsor and has done so since she arrived in Australia.  The family pay for her living costs including food and clothing which is provided mainly by the sponsor with other members of the family suppling small amounts of money as indicated in their declarations.

25. The decision record indicated that there was no documentary evidence to show that the applicant was wholly or substantially reliant on the sponsor for food shelter and clothing and had been so dependent for a substantial period immediately before that time.  The Tribunal notes that in spite of documentary evidence being requested both before the hearing and by letter after the first hearing there is still only very limited documentary evidence to support the applicant’s claim to be wholly or substantially reliant on sponsor.  The Tribunal notes that the bank details supplied by the applicant are not for the relevant period.  There are no receipts for the payment of the Bupa medical insurance and only a statement by the organisation showing that the payments had been made has been submitted.  The bank statements submitted by the sponsor have a number of debits highlighted which it is claimed indicates that these were amount spent on the applicant.

26. The Tribunal considers that had the sponsor kept better records and properly addressed the requests for information from the Department and from the Tribunal it may have been possible to provide the documentary evidence requested. The sponsor told the Tribunal she suffers from an anxiety problem.  There is no documentary evidence concerning this before the Tribunal.  Nevertheless it is apparent to the Tribunal that she had significant difficulty in presenting evidence and in submitting the requested material.

27. The Tribunal notes that although there is little documentary evidence to support the applicant’s contention that she is wholly and substantially reliant on the sponsor for food clothing and shelter the Tribunal had available to it information provided by the applicant and members of the family in course of 2 hearings in which the applicant and members of the family were questioned about this in some detail.

28. On the basis of the oral evidence presented at the hearing the Tribunal is satisfied that the applicant is wholly or substantially reliant on her granddaughter, the sponsor for financial support to meet her basic needs for food, clothing and shelter.  It is further satisfied that her reliance is greater than any reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter.

29. For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the applicant old enough to be granted an age pension?

30. To meet the definition of ‘aged dependent relative’ the applicant must be old enough to be granted an aged pension under the Social Security Act 1991. Different age qualifications apply for men and women and depend upon the date of the applicant’s birth.

31. The applicant was born on 3 August 1933.  The Tribunal is satisfied that she is old enough to be granted and Age pensions under the Social Security Act 1991.

32. For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application the time of decision.

33. For the reasons set out above, the Tribunal is satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application the time of decision for the purposes of cl.838.212 and cl.838.221.

34. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 838 visa.

    DECISION

35. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

    cl.838.211 of Schedule 2 to the Regulations.

    Rieteke Chenoweth
    Member